United States: An Ounce Of Prevention Is Worth A Pound Of Cure: An Update On The Importance Of Comprehensive Anti-Harassment/Discrimination Policies And Training

Co-authored by Mr Bruce Alper

There are many things you cannot control in the workplace. Relationships blossom. Fraternization occurs. Feelings are hurt. Anger is stirred. Comments are made. Desires are pursued. More often than not, management is not aware of any of them. Fortunately, the law recognizes this fact – at least where co-workers are concerned – and provides employers with a defense to hostile environment claims.

For some employers, updating their EEO and harassment policies and providing EEO training to their employees remains at or near the bottom of the company’s "to do" list. With a leaner economy, some companies may opt to save money on the legal fees associated with such steps. Other companies believe they get too little return on their investment. Still others prefer to "roll the dice," hoping that none of their employees files a charge of discrimination and/or a lawsuit.

Although "rolling the dice" is never a wise approach, in the wake of the United States Supreme Court’s rulings in Faragher v. Boca Raton, 118 S. Ct. 2275 (1998) and Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998), such an approach will most likely subject employers to significantly greater liability. In Faragher and Ellerth, the Supreme Court set forth requirements under which employers can avoid liability for supervisory harassment only if the company has exercised reasonable care to prevent and remedy harassment. In order to satisfy this standard, employers must provide an effective complaint mechanism and take other steps - including regular policy updates and training – to ensure employees are aware of their rights and obligations.

The Equal Employment Opportunity Commission ("EEOC") issued an Enforcement Guidance in 1999 which included steps an employer should take in promulgating an effective harassment policy. First and foremost, employers should give every employee a copy of the company’s anti-harassment policy when they begin work and should redistribute copies on a regular basis. The policy should be written in such a manner that it can be easily understood and it should contain an explanation of how to report potential violations. Furthermore, the employer should post the policy in locations where it will be seen by employees (e.g., by the time clock(s)). The EEOC recommends that training be provided so the employees understand their rights as well as available remedies.

So, with all of these terrific judicial and agency roadmaps, where have employers journeyed lately? Well, for one thing, a number of them have risked significant monetary damage awards to employees by continuing to operate with inadequate policies and inadequate training. For example, in Anderson v. G.D.C., Inc., 281 F.3d 452 (4th Cir. 2002), the Court was presented with evidence that the employer never adopted any anti-discrimination policy, nor did it provide any training whatsoever on the subject of discrimination. The only affirmative step the company could point to was that a supervisor placed an EEOC poster regarding discrimination in a dispatch trailer. The Court explained that this bare-bones effort to educate employees about EEO laws "simply does not constitute a good faith effort to forestall potential discrimination." Moreover, the Court stated that such inadequate steps prevent an employer from being able to remedy any discrimination that might occur. Thus, the Court concluded that G.D.C. did not engage in good faith efforts to comply with Title VII. This ruling enabled the plaintiff, a female truck driver, to proceed to trial with her retaliation and punitive damage claims.

Another risk involves the possibility that you will be unable to rely on certain defenses otherwise available to employers faced with harassment lawsuits. In Miller v. Kenworth of Dothan, 277 F.3d 1269 (11th Cir. 2002), the Court ruled that the employer could not claim that it was not aware that the plaintiff-employee was being subjected to constant harassment. When an employer has a "comprehensive and effective" policy which is aggressively and thoroughly distributed, it can avoid liability for harassment claims where the employee failed to complain. Here, however, Kenworth neglected to post a harassment policy in the workplace and could not produce a managerial employee who was aware of the company’s policy. Kenworth’s ability to prove that the plaintiff was aware of the company’s policy was further hampered by the fact that the purported acknowledgment page was inexplicably missing from her personnel file.

In Hill v. Children’s Village, - F. Supp. 2d —, 2002 WL 505923 (S.D.N.Y. 2002), the Court explained that an employer may be held liable under Title VII for a hostile work environment if the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it. However, the Court explained, merely possessing a written sexual harassment policy does not enable an employer to demonstrate reasonable care in preventing sexual harassment. The policy must also be reasonably promulgated. The Court refused to dismiss the plaintiff’s claim because she raised a question of fact over whether this policy was regularly distributed to employees, claiming that she did not see it until after she was fired. Moreover, the Court noted that the plaintiff had produced evidence from which a jury could find that several managers had insufficient training to recognize sexual harassment when they saw it.

The importance of current policies and training extends beyond harassment issues to managerial decisions. Managers have a lot on their mind – from keeping an eye on the bottom line to ensuring a quality product is produced or service provided. In some instances, compliance with EEO laws may be overlooked. Certainly, today’s employers know they cannot discriminate. But are you confident that your managers can effectively articulate their obligations if questioned about them in a deposition or at trial? The Seventh Circuit issued a stark warning to employers that fail to train their managers as to such obligations in a recent opinion. In Mathis v. Phillips Chevrolet, 269 F.3d 771 (7th Cir. 2001), the Court stated: "[l]eaving managers with hiring authority in ignorance of the basic features of the discrimination laws is an ‘extraordinary mistake’ for a company to make." Because Phillips Chevrolet made such a mistake, the Court upheld a $100,000 compensatory and liquidated damages award.

What can an employer do to get back on the right road? There are a number of things that should be done to better protect an employer from discrimination and harassment claims.

(1) Update: First, make sure your policies are current and legally sufficient. Do they cover the various types of discrimination? Is the harassment reporting mechanism easily understood? Does it provide an avenue of redress for employees who may work odd hours and may not have ready access to the persons designated to receive complaints? Also, consider whether your workforce has employees not proficient in English. You may want to provide them with copies of your harassment policy translated into their language(s).

(2) Distribution/Acknowledgement: Once your policy has been reviewed and updated, it should be redistributed to your employees. In doing so, you should obtain acknowledgments signed by each employee and place them in the personnel files or some other central repository. These acknowledgments can be tailored to reflect more than the mere receipt of the policy; they can confirm that the employee understands the policy and was given the opportunity to ask questions.

(3) Training: A comprehensive approach to ensuring compliance with EEO laws includes training your managers and employees. As noted above in G.D.C. Inc., employee training is one step that employers should take in demonstrating a good-faith effort to comply with federal (and state) discrimination laws. This is particularly true when it comes to harassment. It is essential that your employees understand what is prohibited conduct and what to do if it happens to them. Indeed, an employee may not realize that Title VII prohibits harassment because of gender (e.g., assembly plant workers harassing a female co-worker because they do not want a woman in the shop) as well as sexually motivated harassment (e.g., groping). And when the training is completed, make sure to have your employees sign a form acknowledging that they attended the training and that the reporting mechanism was discussed and understood. Managers should be made aware of their obligation to report and respond to harassment complaints, as well as the EEO laws with which they must comply. All employees should be informed as to what the laws prohibit and how they can notify the company when they believe the laws have been broken.